Employability is one of the most contested issues in vocational litigation. Whether you are handling a workers’ compensation claim, a personal injury matter, or a family law proceeding involving imputed income, the question of what a person can realistically earn in the open labor market sits at the center of the dispute.
Understanding how employability assessments work, what methodology should support them, and what separates a defensible opinion from a vulnerable one will help you evaluate the vocational evidence in your case more effectively, whether you are the one retaining the expert or the one preparing to challenge it.
What an Employability Assessment Actually Evaluates
An employability assessment is not simply a list of jobs a person could theoretically perform. A properly conducted assessment answers a more precise question: given this individual’s specific functional limitations, vocational history, transferable skills, educational background, and the realities of the local labor market, what occupations are actually accessible and realistically attainable?
Each element of that question matters. Strip away any one of them and the assessment becomes legally vulnerable.
Functional limitations define the physical and cognitive demands the claimant can and cannot meet. These come from medical records, functional capacity evaluations, treating physician restrictions, and the evaluator’s direct clinical assessment. The evaluator must account for the severity of restrictions across the full range of a workday, not just what a claimant can do in isolation on a good day.
Vocational history establishes the skills the claimant has developed and used in prior work. A skilled vocational expert conducts a thorough review of all past employment and identifies transferable skills, specifically the skills that carry over from prior occupations to occupations within the claimant’s current functional capacity. This analysis must be grounded in recognized occupational classification systems and should be documented in detail.
Educational background shapes which occupations are realistically accessible. A claimant’s formal education level is only a starting point. An evaluator must assess actual literacy, numeracy, and academic functioning, because many claimants with a high school diploma have functional academic skills that limit their occupation access more than the diploma suggests.
Labor market access determines whether the identified occupations actually exist in sufficient numbers in the claimant’s geographic area. An occupation that exists nationally in large numbers may have limited local availability. The evaluator must consider the claimant’s realistic commute range, transportation situation, and whether the identified jobs are genuinely accessible given those constraints.
The Methodology Behind a Defensible Opinion
Strong employability opinions are supported by a documented, replicable methodology. When an attorney challenges a vocational opinion at deposition or trial, the questions are largely about process: What did you review? What tests did you administer? What databases did you consult? What did you actually ask the claimant?
Occupational classification. The foundational tool for occupation identification is ONET, the occupational information database maintained by the U.S. Department of Labor. ONET provides detailed information on the knowledge, skills, abilities, and physical demands associated with hundreds of occupations. A vocational evaluator who cannot connect the identified occupations to O*NET data or a comparable classification system is operating without a documented evidentiary basis.
Labor market data. Wage opinions must be supported by wage data. The Bureau of Labor Statistics Occupational Employment and Wage Statistics program provides national and state-level wage data by occupation. California-specific wage data is available through the Employment Development Department’s Labor Market Information Division. Direct employer surveys, when conducted properly and documented in the report, provide an additional layer of support for wage opinions.
Transferable Skills Analysis. The evaluator’s identification of which prior occupations transfer to which new occupations must be systematic, not intuitive. A proper transferable skills analysis identifies the specific skills developed in prior work, the physical and cognitive demands of those prior roles, and the degree to which the claimant’s identified skills transfer to occupations within their current functional restrictions.
Clinical interview. A vocational evaluation without a structured direct interview with the claimant is incomplete. The interview is where the evaluator gathers the vocational history, verifies education and training, explores real-world barriers to employment, and identifies factors that records alone cannot reveal. An evaluator who forms opinions without direct contact with the claimant is working with an incomplete picture.
What to Look for in an Opposing Expert’s Report
If you are preparing to challenge a vocational opinion, the places where opinions are most frequently vulnerable are also the places where methodology is most often thin.
Occupation identification without current labor market support. An evaluator who identifies occupations but does not verify their current availability in the local market is producing a theoretical list, not a market-based opinion. Ask for documentation of local job openings, employer contacts, or current labor market data supporting the identified positions.
Wage opinions not tied to a specific data source. “The occupation pays between X and Y” is not an opinion. An opinion names the data source, the survey date, the geographic area, and the percentile ranges it is relying on. If the report does not contain that information, the wage opinion has no evidentiary foundation.
Failure to account for the full vocational profile. An evaluator who focused only on medical records and functional limitations, without a clinical interview or a thorough vocational history, may have identified occupations that are inconsistent with the claimant’s actual skills, education level, or labor market access. This is often where the most productive deposition territory lies.
Inconsistency between identified occupations and documented restrictions. Compare the physical and cognitive demands of each identified occupation against the documented functional limitations. Vocational evaluators sometimes identify light-duty occupations that, when examined against O*NET data, actually require functional capacity the claimant does not have.
What Retaining Counsel Should Expect from Their Own Expert
A well-prepared employability opinion does several things that make it both useful to your case and resistant to attack.
It identifies occupations by name, DOT or O*NET code, and functional demand level, with each occupation connected to documented evidence that it is within the claimant’s functional capacity. It supports each wage opinion with named, dated data sources. It addresses the claimant’s specific vocational profile, not a generalized description of their diagnosis. It anticipates and responds to the most foreseeable challenges, including access, transferability, and real-world feasibility.
A vocational expert who prepares a thorough, well-documented employability opinion gives retaining counsel a reliable foundation to build on. An expert who produces a thin report forces counsel to defend the gaps rather than advance their position.
Questions to Ask When Retaining a Vocational Expert
Before retaining a vocational expert for an employability opinion, consider asking:
How do you conduct the clinical interview, and what vocational history do you gather? What occupational classification system and labor market databases do you use? How do you document your transferable skills analysis? What does your standard report include, and can I see a redacted sample? How do you handle cases where the claimant presents with significant non-medical vocational barriers, such as limited education, transportation issues, or psychosocial factors?
The answers to these questions tell you a great deal about the depth and defensibility of the work you will receive.
VCO Vocational Specialists provides forensic vocational evaluations, earning capacity analyses, and expert testimony for plaintiff and defense attorneys, claims professionals, and insurers throughout California. To submit a referral or request a fee schedule, visit our Referrals page.
